Blagojevich vs. the Senate

Posted on Jan 5, 2009

By Stanley Kutler

Understanding the Constitution sometimes is like interpreting the Talmud. Two scholarly readings bring forth three opinions. Article I, Section 5, of the Constitution is rather straightforward: “Each House shall be the judge of the Elections, Returns and Qualification of its own Members. ...” The rest of the sentence involves quorums and adjournment definitions, while other parts of the section involve the right of each house to make its own rules, including punishments of its members, and the keeping of journals. These clauses are rich in history, deeply rooted as they are in parliamentary experience from Tudor and Stuart days, and are essential to the whole doctrine of separation of powers in the American Constitution.

Small, obscure passages in the Constitution occasionally emerge and contribute to contemporary political disputes and their resolution. On Dec. 30, embattled Gov. Rod Blagojevich of Illinois, who allegedly tried to auction off Barack Obama’s vacated Senate seat to the highest bidder, announced that he was nominating Roland Burris, a locally known, undistinguished African-American politician, to take that seat when the new Congress convened. Senate Democrats have drawn a line in the sand, and they promise to reject any Blagojevich nominee, fearing the taint of corruption.

Meanwhile, the governor has proclaimed his absolute right to name a senator, and he disingenuously has wrapped himself in support from African-American leaders who would justifiably like to see more than zero African-Americans in the Senate. Still, Blagojevich’s veil of spite and cynicism is all too transparent.

Most historical examples of Congress’ right to judge the qualifications of its members clearly give the argument to the Senate Democrats. During Reconstruction, after the Civil War, President Andrew Johnson insisted that he had the power to readmit the seceded states, while Congress insisted on its own power in the development of policy. Eventually, the dispute boiled down to a simple, practical issue of Congress’ constitutional right to determine the qualification of its members.

After the war, Southern states, believing that they had the unquestionable right to return to the Union—as if secession had never happened—elected numerous former Confederate officials, including the vice president of the defunct Confederacy, to represent them in the postwar Congress. The congressional Republicans refused to seat these new members, in effect saying they were not fit to serve. Reconstruction ran a meandering course, but the power of Congress to determine the seating of its own members never was repudiated. Some argued that Congress had abused its power, but abuse of a properly endowed power is no argument against its existence.

In 1918, Milwaukee voters elected Socialist Victor Berger to the House of Representatives, which promptly denied Berger his seat. In that era of the “Red Scare,” the New York Assembly similarly refused to seat five duly elected Socialists. Berger had actively opposed American participation in World War I, earning the enmity of the Wilson administration and a federal indictment under the Espionage Act. Berger was convicted in February 1919, and trial Judge Kenesaw Mountain Landis sentenced him to 20 years in prison. The U.S. Supreme Court, however, overturned the conviction in 1921 on the ground that Landis had been blatantly prejudiced.

Berger’s 1918 election came while he was under indictment. After his conviction, the House determined him unfit to serve. In December of that year, Wisconsin held a special election and Berger won again. And again the House refused to seat him. The seat remained vacant until the nation returned to “normalcy,” and Berger lost to a Republican.

The Supreme Court’s 1969 decision, restoring Adam Clayton Powell to his House membership, is regarded by some as the court’s modern, authoritative interpretation of Article I, Section 5. Powell had won plaudits for his skillful shepherding of labor and education legislation, but allegations surfaced in the mid-1960s that he had misappropriated committee funds for his personal use. The Democratic Caucus stripped him of his committee chairmanship, and the full House voted in March 1967 to deny him his seat. Powell won a special election in April but did not return to Congress. Instead, he sued, and in June 1969 the Supreme Court ruled that the House had acted unconstitutionally. The ruling interpreted the constitutional clause to mean that qualification for membership simply was confined to age, citizenship and residency.

Powell v. McCormack is the Supreme Court’s only interpretation of the qualification clause. The intervention was not timely, coming more than two years after Powell had been excluded. It was unprecedented and unsupported by the constitutional clause. The decision simply ignored both the history and purpose of that clause. The constitutional proviso is there precisely so Congress is not forced to accept politically rigged, perhaps corrupt, choices. The court’s judgment does not wipe out constitutional history. The examples of congressional autonomy and power are clear, important precedents for our history.

Chicago Tribune columnist Steve Chapman described Burris as a man who has left few impressions, save for a 12-year stint as state comptroller and numerous electoral defeats when he sought higher office. When the Blagojevich scandal broke, Burris described the governor’s behavior as “appalling,” but after his selection to the Senate, Burris simply said that “I have no comment on what the governor’s circumstance is.” During his years in public office, no prosecutor found grounds to indict Burris, which is, Chapman drily noted, “not something Illinois voters take for granted.”

In this contest of wills—the governor’s rightful authority to appoint a senator as opposed to the Senate’s power to judge the qualification of its members—the last word simply belongs to the Senate. Will it stand by its line in the sand? If Senate Democrats hope to launch Obama’s initiatives quickly, with fewer than 60 Senate seats on the Democratic side, they may need every vote they can get and need them right away. Seating Burris would mean that the Democrats would have to endure suspicion (however ill-founded) that he was tainted with the mark of corruption. Will constitutional principle or expediency prevail? Alas, expediency is the law of life in politics.

Stanley Kutler is the author of “The Wars of Watergate” and other writings.